This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
The Wackenhut Corporation,
Children’s Health Care a/k/a Children’s Hospital,
Filed June 13, 2006
Ramsey County District Court
File No. C2-04-8934
James F. Roegge, Livia E. Babcock, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondent The Wackenhut Corporation)
Daniel R. Kelly, Eric J. Riensche, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN 55402 (for respondent Children’s Hospital)
Considered and decided by Kalitowski, Presiding Judge; Hudson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s grant of summary judgment in favor of respondents, appellant argues that (1) the district court misapplied the summary-judgment standard; (2) genuine issues of material fact remain; and (3) the district court erred by denying his motions to amend the complaint and for a continuance. We affirm.
D E C I S I O N
Application of Law
Appellant Michael Harvey first argues that the
district court misapplied the summary-judgment standard by maintaining that
appellant must provide facts to prove essential elements of the claim. “On
an appeal from summary judgment, we ask two questions: (1) whether there are
any genuine issues of material fact and (2) whether the [district court] erred
in [its] application of the law.” State by Cooper v. French, 460 N.W.2d
2, 4 (
Genuine Issues of Material Fact
Appellant next argues that genuine issues of material fact remain. It is undisputed that appellant worked as a security officer for respondent The Wackenhut Corporation (TWC), a contract security business. TWC assigned appellant to respondent Children’s Health Care (CHC). CHC’s security manager received complaints that appellant had given an employee a greeting card and another employee a poem and asked TWC to reassign appellant. A TWC supervisor met with appellant, and appellant admitted giving the card and poem, but insisted that he had done nothing wrong. Appellant was asked to submit a written response, and TWC put him on unpaid leave while it investigated. TWC was unsuccessful in gaining appellant’s cooperation with the investigation and appellant was terminated.
Appellant argues that CHC defamed him.
The elements of defamation are (1) a false
statement, (2) communicated to someone other than the plaintiff, and (3) that
harms the plaintiff’s reputation. Stuempges v. Parke, Davis & Co., 297
N.W.2d 252, 255 (
Only statements that present or imply the existence of fact that can be proven true or false are actionable under state defamation law. Thus, if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.
Marchant Inv. & Mgmt. Co. v. St. Anthony W. Neighborhood, 694 N.W.2d 92, 95-96 (Minn. App. 2005) (quotations omitted). Additionally, truth is a complete defense. Stuempges, 297 N.W.2d at 255.
Appellant contends that CHC defamed him when it reported to TWC that appellant engaged in sexual harassment. Appellant bases this allegation on a statement from his supervisor at TWC, who told him that TWC would treat the information from CHC as a sexual-harassment complaint. Appellant fails to show that CHC reported a “sexual-harassment” complaint. CHC reported that appellant gave a card and a poem to two employees, that appellant’s conduct was described as “inappropriate,” and that one employee felt “uncomfortable” and thought it was strange to receive a card from appellant. First, appellant admitted to giving the card and the poem. Second, appellant chose not to participate in TWC’s investigation because he was unclear whether the complained-of behavior was “sexual harassment” or just “harassment.” Appellant has failed to show that CHC reported a “sexual-harassment” complaint—a type of complaint that would harm appellant’s reputation.
Appellant also argues that he was defamed through e-mails. An e-mail sent from a female CHC employee to another CHC employee stated that the female employee heard that a “security officer ha[d] been lurking[.]” The e-mail also stated that this female employee was disturbed and that “[w]ith all the crazy stuff going on in this world, you really have to watch out for yourself.” The response to the e-mail stated that CHC had “zero tolerance” for such behavior. These statements are insufficient to support a defamation claim because they are not verifiable facts, and it is true that CHC has a zero-tolerance policy. The district court did not err in granting summary judgment in favor of CHC on the defamation claim.
Appellant argues that CHC and TWC defrauded him. The elements of fraud are:
a false representation pertaining to a material past or present fact susceptible of human knowledge, knowledge by the person making the representation of its falsity or assertion of it without knowledge of its truth or falsity, an intention that the other person act on it, or circumstances justifying the other person in so acting, and the other person being in fact reasonably induced to act upon the representation, relying upon it and suffering damage attributable to the misrepresentation.
In re Strid, 487 N.W.2d
891, 893-94 (
Appellant argues that CHC defrauded him by reporting a false sexual-harassment complaint and by failing to investigate the complaints. First, we have already determined that appellant failed to show that CHC reported a “sexual-harassment” complaint. Second, appellant suggests that CHC falsely represented in its disciplinary policy that it would investigate harassment claims. Appellant has failed to show that CHC has not followed its policy. The service contract between TWC and CHC provided that security officers assigned to CHC would remain TWC employees. CHC referred the complaints to TWC, and TWC attempted to conduct an investigation, but appellant failed to cooperate.
Appellant also argues that TWC defrauded him by failing to follow its disciplinary policy. Appellant contends that his supervisor stated that the terms of TWC and CHC’s contract prevented her from divulging information to him regarding the complaints. Appellant’s argument fails. While TWC attempted to contact appellant during its investigation, appellant repeatedly sent letters to TWC asking for more information; thus, he did not rely on his supervisor’s statement. The district court did not err in granting summary judgment in favor of CHC and TWC on the fraud claims.
Next, appellant argues that CHC was
negligent for failing to comply with its sexual-harassment policy. Appellant contends that CHC affirmed a duty
to non-employees in its harassment policy to investigate before reporting to
TWC. The scope of a legal duty is a
question of law. Zacharias v. Minn.
Dep’t of Natural Res., 506
N.W.2d 313, 319 (Minn. App. 1993), review denied (Minn. Nov. 16, 1993). The elements of a negligence claim are: “(1) the existence of a duty of care;
(2) a breach of that duty; (3) an injury was sustained; and (4) breach of the
duty was the proximate cause of the injury.” Lubbers v.
First, CHC did not owe appellant a duty because the contract between TWC and CHC provided that TWC employees assigned to CHC would not be CHC employees. Additionally, TWC’s security-officer handbook provided that no employee would have a vested interest in any assignment and may be removed or transferred for any reason, including a client-directed request. Thus, CHC could have asked for appellant’s reassignment for any reason or for no reason and did not need to first investigate the complaint. Finally, the failure to follow a harassment policy does not breach a legal duty.
Appellant also argues that TWC owed him a duty to investigate. Failure to follow a sexual-harassment policy does not breach a legal duty. More importantly, TWC tried to investigate, but appellant chose not to participate and was terminated as a result. The district court did not err in granting summary judgment in favor of CHC and TWC on the negligence claims.
argues that CHC harassed him by reporting a sexual-harassment complaint to TWC. Appellant contends that TWC harassed him, but
fails to assert how he believes TWC harassed him.
Breach of Contract and Wrongful Termination
Appellant argues that TWC breached
his employment contract. “Unless
otherwise agreed between the parties, the employment relationship is at-will[.]” Aberman v.
Nothing herein contained shall be construed to be a contract between the employer and the employee. Additionally, this handbook is not to be construed by any employee as containing binding terms and conditions of employment. The company retains the absolute right to terminate any employee, at any time, with or without good cause.
Appellant was an at-will employee. But appellant contends that the disclaimer should be rejected because it provides TWC with an absolute right to terminate any employee, at any time, and nobody can have an absolute right to anything. Appellant argues that this absolute right permits TWC to terminate an employee based on race, religion, or gender. This argument fails because any discharged employee who can show membership in a protected class or a discriminatory motive has a civil-rights cause of action against TWC or any employer. See Goins, 635 N.W.2d at 722. Appellant also argues that a jury should determine whether TWC’s disciplinary policy creates an employment contract. There is no issue remaining for a jury, however, because TWC’s disclaimer explicitly defined the employment relationship. TWC could have discharged appellant for any reason or for no reason at all. TWC discharged appellant because of appellant’s failure to cooperate with their investigation. The district court did not err in granting summary judgment in favor of TWC on this claim.
Tortious Interference with Contract
argues that CHC tortiously interfered with his employment contract when it
reported the complaints. Tortious
interference with a contract requires: “(1) the existence of a contract; (2)
the alleged wrongdoer’s knowledge of the contract; (3) his
intentional procurement of its breach; (4) without justification; and (5)
damages resulting therefrom.” Bouten
v. Richard Miller Homes, Inc.,321
N.W.2d 895, 900 (
Motion to Amend Complaint
Appellant argues that the district court
erred in denying his motion to amend the complaint to include a libel claim against CHC,
attorney fees, and punitive damages.
The decision to allow a party to amend a complaint after an
answer has been filed is within the discretion of the district court, and the
district court should liberally grant such motions when justice so requires and
it will not prejudice the adverse party.
The district court did not abuse its
discretion in denying appellant’s motion.
First, appellant had asserted a defamation claim against CHC. Defamation ordinarily is established by proof
of a statement communicated to
someone other than the claimant that is false and that harmed the claimant’s
reputation and esteem in the community. Weinberger
Motion for Continuance
argues that the district court erred by denying his request for a continuance. “The granting of a continuance is within the
discretion of the [district] court and its ruling will not be reversed absent a
clear abuse of that discretion.” Chahla
v. City of St. Paul, 507 N.W.2d 29, 31 (Minn. App. 1993), review denied (Minn.
Dec. 14, 1993). “The test is whether a denial prejudices the outcome of the
The district court must
address two questions before ruling on a motion to continue: (1) whether the
plaintiff has been diligent in obtaining or seeking discovery prior to the
motion; and (2) whether the plaintiff is seeking discovery in the good-faith
belief that material facts will be uncovered or merely engaging in a fishing
expedition. Rice v. Perl,320 N.W.2d 407, 412 (
Appellant argues that he did not have an opportunity to conduct discovery. During the summary-judgment-motion hearing, appellant stated that he strategically chose not to conduct depositions until respondents deposed him. Respondents deposed appellant on February 16 and March 21, 2005. Appellant had two months to conduct depositions that he claimed would take no longer than “two hours.” Further, appellant’s case had been in the district court since September 2004, allowing him sufficient time to conduct discovery. Appellant was not diligent, and the district court correctly determined that a continuance would not have helped appellant’s case survive summary judgment.